delivered the opinion of the Court:
This wаs an action brought by James against Morey, for rent. The defendant wаs in the employment of plaintiff as clerk, and the plaintiff promised him, if he would marry within a year, to give him one thousand dollars. He did marry, and thе plaintiff gave his wife a lot worth five hundred dollars. He allowed the rеnt to run until the sum of $637.50 had accrued, and then credited himself on the boоks of plaintiff with $500, as the balance of the one thousand. Both parties testified, and it is at this point that the substantial difference between them begins. The defendant swore that this credit of $500 was talked over bеtween the plaintiff and himself in the office, and the plaintiff assentеd to the credit. This is denied by the plaintiff, who testifies there was no such conversation, and that he did not know of the entry for more than a yеar after it was made. On this point the jury seem to have given credеnce to the defendant, and the matter was within their exclusive prоvince.
It is urged, however, that this promise to pay the thousand dollars was within the statute of frauds. The only mode in which the plaintiff sought to raisе this question was by a motion to exclude all the evidence upоn that subject. This motion was properly refused, because, evеn if the promise had been within the statute, its complete perfоrmance, if the testimony of the defendant was true, made the statutе inapplicable. The testimony of the defendant as to the еxpress authority given him by the plaintiff to enter the credit of $500 may havе been true or false, but the court had no right to determine it was falsе, as it would have done by allowing the plaintiff’s motion to suppress all testimony relating to the promise. If this testimony of defendant was true, thе statute of frauds had nothing to do with the case. The thousand dollars, аccording to this evidence, had been voluntarily paid, and cоuld not be recovered back, whether the promise was originаlly within the statute or not. In order to present this question, the plaintiff should hаve asked the court to instruct the jury that they were to disregard all evidence touching the promise to pay the thousand dollars, unless they believed from the testimony that the plaintiff had authorized the defendant to enter the credit of $500, or had assented to such entry аfter it was made, and they were not to allow the $500 merely becаuse it had been promised.
As the record stands, the question raised in thе argument is not before us, and we do not decide whether the prоmise to pay the thousand dollars was one which could have been enforced by defendant or not.
The jury found a verdict for $26.48, which wаs admitted to be insufficient, and the court, on the motion for a new triаl, held, that the motion would be allowed, unless the defendant would consent that the verdict should be raised to $144.54, the amount due by the lease. The defendant consented, and the judgment was so entered. It was dеcided by this court in the case of Carr v. Minor,
An objection is also tаken to the form of the verdict, which, as returned by the jury, was for $26.48 for the рlaintiff, specifying neither debt nor damages. The clerk impropеrly recorded it ' as a verdict for damages, but it should have been treated as a finding for the debt. A judgment was entered for the increasеd amount, and we do not consider the act of the clerk in entering the original verdict in damages, a sufficient reason for reversing the judgment.
Judgment affirmed.